Atomic Energy Act
By far the most significant example of legislation adopted at a time when no actual "shooting war" was in progress, with the object of providing for the national defense, is the Atomic Energy Act of 1946.[1284] That law establishes an Atomic Energy Commission of five members which is empowered to conduct through its own facilities, or by contracts with, or loans to private persons, research and developmental activity relating to nuclear processes, the theory and production of atomic energy and the utilization of fissionable and radioactive materials for medical, industrial and other purposes. The act further provides that the Commission shall be the exclusive owner of all facilities (with minor exceptions) for the production of fissionable materials; that all fissionable material produced shall become its property; that it shall allocate such materials for research and developmental activities, and shall license all transfer of source materials. The Commission is charged with the duty of producing atomic bombs, bomb parts, and other atomic military weapons at the direction of the President. Patents relating to fissionable materials must be filed with the Commission, the "just compensation" payable to the owners to be determined by a Patent Compensation Board designated by the Commission from among its employees.
POSTWAR LEGISLATION
The war power "is not limited to victories in the field. * * * It carries with it inherently the power to guard against the immediate renewal of the conflict, and to remedy the evils which have arisen from its rise and progress."[1285] Accordingly, the Supreme Court held in 1871 that it was within the competence of Congress to deduct from the period limited by statute for the bringing of an action the time during which plaintiff had been unable to prosecute his suit in consequence of the Civil War. This principle was given a much broader application after the first world war in Hamilton v. Kentucky Distilleries and Wine Co.,[1286] where the War Time Prohibition Act adopted after the signing of the Armistice was upheld as an appropriate measure for increasing war efficiency. It was conceded that the measure was valid when enacted, since the mere cessation of hostilities did not end the war or terminate the war powers of Congress. The plaintiff contended however that in October 1919, when the suit was brought, the war emergency had in fact passed, and that the law was therefore obsolete. Inasmuch as the treaty of peace had not yet been concluded and other war activities had not been brought to a close, the Court said it was "unable to conclude" that the act had ceased to be valid. But in 1924 it held upon the facts that we judicially know that the rent control law for the District of Columbia, which had previously been upheld,[1287] had ceased to operate because the emergency which justified it had come to an end.[1288] A similar issue was present after World War II in Woods v. Miller,[1289] where the Supreme Court reversed a decision of a lower court to the effect that the authority of Congress to regulate rents by virtue of the war power ended with the Presidential proclamation terminating hostilities on December 31, 1946. This decision was coupled with a warning that: "We recognize the force of the argument that the effects of war under modern conditions may be felt in the economy for years and years, and that if the war power can be used in days of peace to treat all the wounds which war inflicts on our society, it may not only swallow up all other powers of Congress but largely obliterate the Ninth and the Tenth Amendments as well. There are no such implications in today's decision."[1290] In 1948, a sharply divided Court further ruled that the power which Congress has conferred upon the President to deport enemy aliens in time of a declared war was not exhausted when the shooting war stopped. Speaking for the majority of five, Justice Frankfurter declared: "It is not for us to question a belief by the President that enemy aliens who were justifiably deemed fit subjects for internment during active hostilites [sic] do not lose their potency for mischief during the period of confusion and conflict which is characteristic of a state of war even when the guns are silent but the peace of Peace has not come."[1291]
Private Rights in Wartime
ENEMY COUNTRY
Although, broadly speaking, the constitutional provisions designed for the protection of individual rights are operative in war as well as in peace, the incidents of war repeatedly give rise to situations in which judicially enforceable constitutional restraints are inapplicable. In the first place persons in enemy territory are entirely beyond the reach of constitutional limitations. They are subject, in relation to the war powers of the National Government, to the laws of war as interpreted and applied by Congress and by the President as Commander in Chief. To the question: "What is the law which governs an army invading an enemy's country?" the Court gave the following answer in Dow v. Johnson:[1292] "It is not the civil law of the invaded country; it is not the civil law of the conquering country: it is military law,—the law of war,—and its supremacy for the protection of the officers and soldiers of the army, when in service in the field in the enemy's country, is as essential to the efficiency of the army as the supremacy of the civil law at home, and, in time of peace, is essential to the preservation of liberty."[1293]
THEATRE OF MILITARY OPERATIONS
That substantially the same rule, resting on the same considerations, applies in the field of active military operations, was assumed by all members of the Court in Ex parte Milligan.[1294] There the Court held that the trial by a military commission of a civilian charged with acts of disloyalty committed in a part of the country which was remote from the theatre of military operations, and in which the civil courts were open and functioning, was invalid under the Fifth and Sixth Amendments. Although unanimous in holding that the military tribunal lacked jurisdiction to try the case, the Court divided, five-to-four, as to the grounds of the decision. The point on which the Justices differed was which department of the Government had authority to say with finality what regions lie within the theatre of military operation. Claiming this as a function of the courts, the majority held that the theatre of war did not embrace an area in which the civil courts were open and functioning.[1295] The minority argued that this was a question to be determined by Congress.[1296] All rejected the argument of the government that the President's determination was conclusive in the absence of restraining legislation. A similar result was reached in Duncan v. Kahanamoku[1297] where, upon an examination of the circumstances existing in Hawaii after Pearl Harbor, a divided Court found that the authority which Congress had granted to the Territorial Governor to declare martial law "in case of rebellion or invasion, or imminent danger thereof," did not warrant the trial of civilians by military tribunals.
ENEMY PROPERTY